Devlin springs to his feet. “Objection! Counsel is testifying. He doesn’t dare put his client on the stand, so he’s blowing a smoke screen.”
Judge Henry, now visibly spent, interrupts. “Mr. McFarland, is your client going to take the stand or not?”
Evading the question, I stay on message. “Your Honor, Mr. Hanson had no intention, has no intention, of fleeing the jurisdiction. He very much wants his day in court, he wants the chance to be here to dispute the specious charges brought against him.”
Bill Henry doesn’t skip a beat. “Then let’s make sure he gets his wish. I am revoking the defendant’s bail and remanding him to the county prison, to remain there until and through the duration of his trial.” With that he nods to the two deputies, who walk to the front of the courtroom, cuff David, and lead him out the side door, their destination the holding cells in the subbasement. David will stay there until five o’clock, at which time he will be loaded into the sheriff’s bus and transported to the Curran-Fromhold Correctional Facility in Northeast Philadelphia.
I watch David’s exit, watch him hold his head high, keep his back straight, trying to retain as much dignity as he can. Before the deputies close the door behind them, David glances back into the courtroom. I’ve seen the “last glance” from dozens of defendants, seen the guilt, sorrow, regret, fear, numbed disbelief plastered all over their faces as they take in a final look at the loved ones they’re leaving behind, sometimes for good. But David isn’t looking back in sadness or distress. And he isn’t looking at Marcie. His eyes hold only hatred for his real enemy. For Edwin. According to David, it was Edwin who placed the anonymous call to the DA’s office. Somehow, his half brother had found out about his taking the money from the Mexican subsidiary and tipped off the prosecution.
I look from one brother to the other. Then, in my peripheral vision, I see two other people watching David. The first is Marcie. Her eyes are narrowed, her lips turned down, but her head, like David’s, is held high. Resolve. The second person whose eyes I see locked on David surprises me. It’s Tommy. He’s standing in the back of the courtroom, legs spread apart, arms crossed. Tommy’s lips are turned up in a smirk.
“Chambers in ten minutes,” the judge announces from the bench, summoning counsel for both sides into his private office.
When I arrive at the judge’s chambers on the twelfth floor, I find only Devlin Walker in the waiting area. He must’ve sent Christina Wesley and Caroline Robb back to the DA’s office. Bill Henry nods to his law clerk as soon as we sit, and she hands Devlin and me a sheaf of papers.
“I’ve ruled on your omnibus motion, Mr. McFarland,” the judge begins before I have a chance to scan his order.
The Pennsylvania Rules of Criminal Procedure require defense attorneys to put all their requests for relief into one all-encompassing, or “omnibus,” motion. I submitted ours weeks ago, as did Devlin. Among Devlin’s requests was that the court exclude the evidence of the burglaries in Jennifer Yamura’s neighborhood during the weeks before and after her murder. Judge Henry tells us he’s reserving his ruling on that motion, that he will wait and see how strong the other evidence is supporting the defense theory that Jennifer may have been murdered as part of a burglary gone bad.
The judge then turns to my requests and announces his decision to exclude any evidence of the calls to my office from Jennifer Yamura’s cell phone during the time period within which she was murdered. “There is no proof that Mr. Hanson made those calls,” he explains. “In fact, we know from Ms. Toscano’s testimony that the first call was definitely not from Mr. Hanson. As to the second call, any probative value is outweighed by the unfair prejudice to the defense should the calls be allowed into evidence.”
In my omnibus motion, I also asked the court to exclude all of David’s clothing, collected upon his arrest, on the grounds that the police had lacked probable cause to arrest him. My argument was that although David was caught fleeing Jennifer’s apartment, it was hours after her death. And, I contended, the police had no business being there in the first place because the 911 phone call tipping them off—in which the caller claimed he’d heard sounds of a struggle—had to have been a ruse, because by that time, Yamura had been dead for hours. I also asked the court to exclude David’s statement at the police station that he’d been at work all afternoon, also on the grounds that the police had no probable cause to arrest my client. Finally, I asked for a change of venue to Pittsburgh or Williamsport, arguing that the pretrial publicity had irredeemably poisoned the jury pool against him.
I expected the court to deny my first two requests. Our appellate courts have found probable cause to arrest on far less evidence than the defendant fleeing the scene of the murder after being caught red-handed trying to clean it up. I am a bit surprised, however, when the judge announces that he’s denying my change-of-venue request, until he explains himself.
“I was all but ready to move this case out of Philadelphia,” Judge Henry says, looking at me, “until I saw all those well-placed articles in the newspaper about your client’s wonderful gifts to charity and his personal mission to bring jobs back to the city. How could any reader think ill of Mr. Hanson after reading those articles? In my mind, those stories more than made up for the prosecution’s anonymous tip to the newspapers about Mr. Hanson’s love nest in New York.”
“That was not us, Your Honor,” Devlin interjects.
“Even so,” I interrupt, ignoring Walker, “the court must surely recognize that it will be impossible for Mr. Hanson to find an unbiased jury given the prosecution’s latest motion and Mr. Hanson’s imprisonment on the eve of trial.”
“Oh, no, no, Mr. McFarland.” Bill Henry shakes his head and smiles. “Your client brought that on himself. Violating his bail terms by jet-setting all over the globe. Withdrawing millions of dollars just weeks before a trial that might wind him up in prison for the rest of his life. No, counsel, this case is here to stay. And Mr. Hanson will be here, too. Of that we can now be sure.”
“He can always plead,” Devlin says. “I’ve told defense counsel we’ll accept voluntary manslaughter if Mr. Hanson admits to accidentally killing the victim. Of course, he’d have to produce the victim’s laptop and other missing items.”
The judge thinks for a minute, then asks Devlin, “You think he got into a fight with the decedent? Lost control and pushed her down the stairs?”
“I think it was premeditated, and he should go away for first-degree murder. But if the defendant can convince me I’m wrong, I’ll let him plead to the lower charge.”
“Can we leave now, Your Honor?” I ask. I don’t like this little exchange about my client’s guilt between the prosecutor and the judge.
Bill Henry appraises me, then turns to Devlin. “I’m not so sure the defendant is guilty of anything, Mr. Walker.” Devlin blinks at this and is about to chime in when the judge stops him. “I’m bothered by all these anonymous phone calls. The one that tipped you off that Mr. Hanson was hoarding cash. The one about the New York love nest. And, most of all, the 911 call on the night of the murder. Everyone in this room knows that there couldn’t have been yelling and sounds of a struggle when the victim had been dead for hours. Obviously, there’s another person involved in all of this. And whoever that person is, they’re out to get Mr. Hanson. They made sure the police showed up to catch him trying to destroy evidence. They made sure the whole world knew about his penchant for Asian mistresses—don’t think for one minute, Mr. McFarland, that I was fooled by that dog-and-pony show your client put on about sponsoring gifted foreign-exchange students—and, finally, they blew the whistle on his jet-setting money junket.”
“All of which I’m planning to highlight in my opening statement,” I say, which causes Devlin to squirm in his seat.
“Well?” The judge looks at Walker, meaning, What’s your answer to all that?
“With all due respect, Your Honor,” Devlin says, “I don’t think this is the appropriate forum to get into tr
ial strategy.”
This makes Bill Henry smile. Then he leans forward and looks from Walker to me. “I want to make something very clear to both of you. There has been more posturing in this case, both in court and in the public, than I can remember for a long time. That posturing is now over. Do you hear me? Mr. McFarland? Mr. Walker?” We both say yes. “Good. Because whatever happens in this case, whatever result the jury reaches, I will not have it said that the defendant did not receive a fair trial.” With that, William Henry shoos Devlin Walker and me out of his office.
My adversary and I walk to the elevators in silence. We descend without a word. Devlin, I can tell, is waiting for me to start in on him, harangue him about throwing my client in jail on the eve of trial, tainting the jury pool. Instead, I wait for the doors to open, turn to the prosecutor, and smile. “That hearing, the whole money thing,” I say. “Brilliantly played, Devlin. Brilliantly played.”
Devlin’s mouth drops, and his eyes fill with confusion.
I tell him to have a nice day and leave the elevator ahead of him, the smile still on my face.
David and Marcie Hanson aren’t the only ones who can place anonymous calls.
26
MONDAY, NOVEMBER 12
David Hanson has been stewing in jail for more than two weeks. Today, the trial begins. Courtroom 1007 is packed. All four of the hard, black benches in the spectator’s gallery are filled. At the prosecution table, Devlin Walker sits motionless, eyes closed, elbows on the table, hands together and formed into a steeple, his two index fingers touching his lips. To his left lies the jury box, where the jurors will enjoy an unobstructed view of the prosecutor throughout the trial. To his right sits Christina Wesley, doing her best to look as thoughtful as her boss, not quite pulling it off.
On the first row of benches behind the bar on the prosecution’s side are John and Margaret Yamura and her brother, Brian. Mr. and Mrs. Yamura sit ramrod straight in their seats, eyes locked forward. I’ve read that both are in their early sixties, but the shock of their daughter’s violent death and the months of grief have taken a toll, and they look older. Brian Yamura caught me glancing at him and his parents when I first came into the courtroom. I saw at once the intelligence in his eyes—and the hostility. Brian recognized me for what I am to him and his family: the enemy. The man working to ensure that his sister’s killer escapes justice.
David and I are at the defense table, across the aisle from the prosecutors. I am closest to the jurors; David is to my right. Susan, at my request, is absent from the courtroom. I don’t want her anywhere near this trial. Yet. Her time will come, I hope. If not, it will be because this whole spectacle imploded like a black hole. To ensure that doesn’t happen, I have secured the presence of the iconic attorney Alexander Ginsberg. I’ve told David and Marcie that I hired him to watch the trial and give me his daily read on how things are going for us. Alexander’s real mission is quite different.
Ginsberg sits right behind the defense table, next to Marcie Hanson. On Marcie’s other side, Vaughn Coburn sits; he will take notes and discuss the progress of the case with me every day after trial. Before the jury comes in, I glance back at my team. Ginsberg smiles at me. Marcie nods imperceptibly. I’ve told her never to smile anywhere in the courthouse, or in public. No one—not the jury, not the press, not the public, not the judge—must perceive her as anything but serious and respectful. She and David both must display the crushing burden the charges have placed on their shoulders. What they must not display, I’ve told them, is their wealth. Gone from David’s finger and wrist are his gold signet ring and Rolex watch. Missing from Marcie is her five-carat Tiffany diamond engagement ring. Her visible jewelry consists only of her gold wedding band and a pair of modest pearl earrings. She is dressed at my instruction in a conservative gray pantsuit with a vest and white shirt buttoned at the collar. I will have no female jurors envious of Marcie’s legs or bust. David is wearing a blue off-the-rack Brooks Brothers suit with a white shirt, maroon tie, and black wingtips. The type of suit you see but don’t notice.
There is one more person whose presence in the courtroom has special importance. Sitting in the second row of benches, behind Marcie, Vaughn, and Alexander Ginsberg, is Piper. It’s been years since she’s attended one of my trials. But I made a point of asking her to attend David’s trial. I told her it would mean a lot to me. I didn’t tell Piper I needed her there to witness the case crashing down around us.
David’s imprisonment three weeks before the trial had caused a feeding frenzy in the press. The headlines in the Inquirer and Daily News screamed: “Hanson Imprisoned: DA Claims Millionaire Preparing to Flee” and “Hanson Withdrew Millions in Cash on Eve of Trial” and “Accused Geisha Killer Readies Corporate Jet to Flee.” None of the articles reported my insinuation at the hearing that David had used the money to fund charities. All of them played up his plane flight to Mexico, where he landed at the same private airstrip employed by cartel drug runners. One story colorfully painted a picture of David’s Learjet escaping Philadelphia late at night in a driving rainstorm. It used terms like “lurking” and “dodging” and “absconding,” and referred to David as a “fugitive.”
It took four days to pick the jury. Our panel of twelve jurors and four alternates are from all parts of the city, all walks of life. Kensington, South Philly, West Philly, the Northeast, Rittenhouse Square, the art-museum area, and Old City. A schoolteacher, a nurse, an aerobics instructor, a college track coach, a car salesman, the manager of a Wawa, a college student, a retired businessman, a FedEx driver, a building security guard, a retired insurance salesman, a hairstylist, a retired accountant, an unemployed truck driver, an unemployed factory worker, and a reporter for the Daily News. Ten men, six women. Five whites, nine blacks, two Hispanics. No Asian Americans—I made sure of that.
Judge Henry used Friday afternoon to hear arguments and rule on my motion to prohibit the prosecutor from presenting Edwin and the HWI pilots to testify to David’s withdrawal of money on the eve of trial. I argued that the issue of David’s supposed plans to flee was a straw man that would serve only to poison the jury against him. But the court bought Devlin’s argument that David’s actions evidenced a consciousness of guilt. “If you feel that strongly that the evidence is misleading,” Bill Henry told me, “you can present your client to explain to the jury what his actual intentions were for the money.”
Judge Henry enters through a door at the rear of the courtroom and takes his seat on the bench. Framing him on the back wall are the American flag on his right and the state flag on his left. Directly behind and above the judge hangs the blue-and-gold seal of the Commonwealth of Pennsylvania.
“Please bring in the jury,” Judge Henry says to his deputy, Mike Holleran. “Everyone remain seated while the jury enters the courtroom,” he tells the rest of us. Holleran knocks on a door on the back wall of the courtroom, to the left of the bench. The door opens and, one by one, our special sixteen file into the courtroom and take their seats. Once they’re in position, most of them glance at Devlin and me. All of them look at David. The juror sitting in the first seat in the first row, our presumptive foreman, is the retired businessman. His name is Peter Drummond. He’s seventy-one years old and a former member of the Philadelphia Chamber of Commerce. Drummond has a full head of silver hair and has come to court dressed in a button-down shirt under a deep-blue blazer over charcoal slacks. His face is square and distinguished looking, reminiscent of John Forsythe of the old TV series Dynasty.
“Good morning, ladies and gentlemen,” Judge Henry greets the jury. The jurors say “Good morning” or nod and smile. His Honor spends about half an hour giving the jury preliminary instructions, telling them what our daily schedule will be: 9:00 a.m. sharp to 5:00 p.m., with an hour for lunch, a fifteen-minute break in the morning, and a fifteen-minute break in the afternoon. And Bill Henry means it. He tries a full day, every day.
“And now we will start the trial with the attorneys’ opening stat
ements. The statements themselves are not evidence, and you are not to consider them as evidence. Rather, these statements are counsel’s explications of what they expect the evidence will show.” Judge Henry speaks for another few minutes and then turns to Devlin. “Is the prosecution ready?” Walker states that he is, and the court nods for him to begin.
The prosecutor rises from his seat and buttons his jacket. Dressed in a three-button black suit, white herringbone dress shirt, black-and-white-striped tie, black-and-white porcelain cuff links, and gleaming black loafers, Devlin has an American flag pin on his lapel and his hair freshly cut close to his head. He moves slowly to the center of the courtroom, pauses for a moment before the bench, and says, “May it please the court.” Judge Henry nods, and Devlin turns to his left and walks up to the jury box. Careful not to invade the jurors’ space, he plants himself four feet from the box. A portable lectern is available, but Devlin has chosen not to use it. He has no notes. He’s going to be speaking from the heart.
Devlin sighs, showing the jurors there’s no joy in what he has to do on behalf of the people, but that he’s still going to see it through, for all of our sakes.
“Good morning, ladies and gentlemen,” Devlin says, then pauses. The jurors respond to him. Most of the women smile. Most of the men nod. “I come before you today to obtain justice for a murdered young woman. Jennifer Yamura, a bright woman with a promising future, whose parents worked hard to raise and educate her.” Devlin pauses again, turns toward the Yamura family, gives the jury the chance to see who they’re really fighting for. “Jennifer Yamura, whose life was stolen from her by a man who would have you see him as some sort of public benefactor.” I want to object here, but I know Devlin is baiting me to do it, hoping to get the jury to see me as disruptive. Devlin makes a few more gratuitous remarks about David’s wealth and privilege, then moves to the heart of the case.
A Criminal Defense Page 23